10, 14, 15, 19, 22, 34-42, 46, 47; DAMAGES, 3; DEDICATION, 2; DEEDS, 5;
EQUITY, 3; EXECUTIONS, 24; GUARDIAN AND WARD, 7; INSANITY; JUDG-
MENTS, 4; LIBEL, 1, 2; NEGOTIABLE INSTRUMENTS, 10; NEw Trial;
PARTNERSHIP, 1; PLEADING AND PRACTICE, 29, 32, 38, 39; RECEIPTS, 2;
STATUTE OF LIMITATIONS, 8; TRESPASS, 1, 4, 5; TRUSTS AND TRUSTEES,
4; USURY, 1; WILLS, 13–15, 30, 31; WITNESSES.
See PLEADING AND PRACTICE, 32, 33.
1. EXECUTION UPON JUDGMENT RECOVERED After Death of JUDGMENT
DEBTOR is void, and a purchaser under the execution against the estate
of deceased acquires no title. Swink v. Snodgrass, 190.
2. IN PROCEEDING OF ILLEGALITY which resists execution, the rightfulness of
the judgment is conceded and can not be attacked. Rodgers v. Evans, 390.
& AFTER ACTUAL RETURN OF FIRST EXECUTION, before the return day,
there would be no irregularity, much less any invincible legal obstacle, in
issuing again the same or another execution before the return day. Pen-
nington v. Yell, 262.
SHERIFF CAN NOT REQUIRE Indemnity BEFORE LEVYING BECAUSE PROPERTY
IS IN DISPUTE, but by common law he could summon jury to try right of
property taken by him in execution, when the title was doubtful, or it
was claimed by a third person; and if the verdict was that the property
belonged to a third person, he was justified in delivering it up; the con-
trary verdict, however, did not protect him against the suit of the true
Owner. Our statute, however, has provided, that a verdict against the
claimant of the property shall be a full indemnity to the sheriff in pro-
-ceeding to sell, and if the verdict be for the claimant he shall sell, if
Bufficiently indemnified by the plaintiff in execution. Id.
LEGAL PRESUMPTIONS MUST BE BASED UPON FACTS, and can not be based
upon presumptions; consequently, where the sheriff does not levy the
whole debt, there will not be any presumption that there was no more
property in his county, as this would be basing a presumption upon the
presumption that the sheriff did his duty. Id.
6. WHILE DOWER REMAINS UNASCERTAINED, and until there has been an act-
ual admeasurement by metes and bounds, it is a mere potential interest,
amounting to nothing more than a chose in action, and is not subject to
seizure and sale by execution at law. Id.
7. PHYSICIAN'S HORSE IS LIABLE TO SEIZURE ON EXECUTION. Hanna v. Bry,
606.
8. JUDGMENT MAY BE LEVIED UPON UNDER EXECUTION by a notification of
seizure by the sheriff to the judgment debtor. Id.
9. SHERIFF HAS NO RIGHT TO SEIZE RECORD OF JUDGMENT and disturb the
possession of the clerk, its legal custodian. Id.
10. LANDS AND TENEMENTS ARE SUBJECT TO PAYMENT OF DEBTS, and are
liable to be taken in execution and sold in this state. Union Bank v.
Powell, 367.
11. PURCHASER AT SALE MADE UNDER FINAL DECREE generally takes a good
title, though the decree be afterwards reversed. Clark's Heirs v. Far
row, 552.
12. DEBTOR'S INTEREST IN PERSONAL ESTATE SHOULD FIRST BE APPLIED to
tho payment of a judgment against him, and if that be insufficient to
satisfy it, then his interest in real estate should be sold. Greer v.
Wright, 111.
13. LIEN WHICH PLAINTIFF Acquires upon Goods of Defendant, by the
delivery of an execution to the sheriff, does not vest a title in him,
but simply a right to subject the property to the satisfaction of his debt.
Otey v. Moore, 173.
14. BY SUSPENDING RIGHT TO HAVE EXECUTION ISSUED, the lien of the
prevailing party in an action, upon the goods of the judgment debtor, is
also suspended. Id.
15. DURING SUCH SUSPENSION, BONA FIDE PURCHASER FOR VALUE acquires
title superior to the lien of judgment creditor. Id.
16. REASONABLE NOTICE TO DEBTORS TO CHOOSE APPRAISER will be presumed
by the court from the sheriff's return that such notice was given. Dwinel
v. Soper, 643.
17. SHARES OF JOINT DEBTORS HOLDING ESTATE IN COMMON need not be ap
praised separately. Id.
18. SELLING TOO MUCH LAND UNDER LEVY, by the value of one cent and three
mills, will not vacate the levy. Id.
19. SUCH LEVY UPON PROPERTY AS DOES NOT AMOUNT TO SATISFACTION is no
bar to a further execution on the judgment. Doe ex dem. Mace v. Dutton,
510.
20. LEVY ON PROPERTY NOT SHOWN TO BELONG TO EXECUTION DEFENDANT is
not a satisfaction of the judgment. Id.
21. ISSUE OF SUBSEQUENT EXECUTION BEFORE RETURN TO FORMER ONE is
made, or other proceedings to vacate the levy are had, is at most an error
which renders the execution voidable, but not void. Id.
22. SALE UNDER AN EXECUTION WHICH IS VOIDABLE only, but not void, is
valid even when made to a purchaser with notice of the fact, where ther
is no fraud. Id.
23. EXECUTION MERELY VOIDABLE MAY BE SET ASIDE ON MOTION by the de-
fendant, but until set aside all acts done under it are valid, as well in rela-
tion to the execution plaintiff as to strangers. And if the execution
debtor does not procure the process to be set aside, he will be presumed
to have waived the errors. Id.
24. IF SHERIFF IS AUTHORIZED TO RECEIVE BANK PAPER IN SATISFACTION of
the execution, its receipt by the sheriff amounts to a satisfaction of the
debt, and the return is competent evidence of payment; otherwise it is
inadmissible. Randolph v. Ringgold, 235.
25 SHERIFF DERIVES HIS ENTIRE AUTHORITY AS COLLECTOR under the law as
the ministerial officer of the court. The execution is his legal warrant
of attorney, without which he is totally unauthorized to act. It limits
and prescribes his duties, and confers a special, not a general, authority
to collect. Id.
26. WHERE INSTRUCTION TO "DEMAND GOOD MONEY" WAS INDORSED ON
EXECUTION, the sheriff has no authority to receive depreciated Arkansas
paper in payment; and the sheriff's return that he has received such
paper is not evidence of payment. Id.
27. WHERE SHERIFF FAILS TO COLLECT DEBT IN OBEDIENCE TO COMMAND of
his writ, which requires that he should "demand good money," the
plaintiff has an election to pursue the sheriff for a breach of his official
duty, or he may enforce payment from the debtor upon the original debt.
Id.
28. SALE BY SHERIFF AFTER REturn Day of WRIT OF EXECUTION IS VOID,
and a purchaser at such sale acquires no title. Smith v. Mundy, 221.
29. SALE UNDER EXECUTION OF QUARTER-SECTION OF WILD LAND will not be
set aside for the sole reason that it was not divided and sold in sepa
rate parcels, although it was sold at a great sacrifice. Greenup v. Stoker,
474.
30. MERE INADEQUACY OF PRICE is not Sufficient to Set ASIDE SALE under
execution, which was conducted fairly and judiciously. Id.
31. CORONER MAY, IN CASE OF VACANCY IN OFFICE OF SHERIFF, COMPLETE
EXECUTION of process which has been directed to and partly executed
by the sheriff before the vacancy occurred. Id.
32. SHERIFF SELLING UNDER EXECUTION IS NOT OBLIGED TO TAKE BID of an
irresponsible person. Hobbs v. Beavers, 500.
33. REFUSAL OF SHERIFF TO CRY BID Made by STRANGER, unless the latter
would make himself known or give some evidence of his ability to con-
form to the terms of the sale, does not render the sale void on account
of the property being sold to a person who was not the highest bidder.
Id.
34. SHERIFF IS Agent, Appointed BY LAW, OF BOTH Plaintiff and Depend-
ANT, for the sale of defendant's property, and a purchase of such prop-
erty made by him is absolutely void, and yields to the title of another
acquired by a subsequent sale of the same property. Harrison v. Mc-
Henry, 435.
35. SHERIFF CAN NOT ACT AS DISCRETIONARY AGENT to purchase at his own
sale. Id.
36. Sale of Property under JUNIOR FI. FA., in this state, defeats the lien
of an older judgment upon the same property. The older judgment
may come in and receive the money raised by the sale. Id.
87. IF HIRE OF PROPERTY WILL NOT, WITHIN REASONABLE TIME, SATISFY
JUDGMENT, a sufficient quantity of it may be sold to satisfy said judg.
ment. Bradford v. Greenway, 203.
See ATTORNEY And Client, 5, 7, 9, 10; Co-TENANCY, 3; DEBT; ESTOPPEL, 1,
3,5; EXECUTORS AND ADMINISTRATORS, 6; FRAUDULENT CONVEYANCES, 6,
7; MORTGAGES, 3; SURETYSHIP, 6; TROVER, 1, 2; WITNESSES, 13.
EXECUTORS AND ADMINISTRATORS.
1. PROBATE JUDGE HAS NOT JURISDICTION to grant administration upon the
estate of a person whose domicile at the time of his decease was not
within the county in which he is judge. Moore v. Philbrick, 642.
2. WANT OF JURISDICTION APPEARING IN THE SAME RECORD which shows
a grant of adminstration is conclusive against the validity of such grant.
Id.
3. In Case there should be Failure of Personal Assets, it is the duty
of the executor or administrator to make application for the sale of the
decedent's realty in the mode pointed out by the act of March 4, 1841.
Union Bank v. Powell, 367.
4. EXECUTORS AND ADMINISTRATORS SELLING PROPERTY OF DECEDENT
UNDER AUTHORITY OF LAW have no power to bind the estate by war
ranty, though they may, if they choose, bind themselves by a personal
obligation of this kind. Worthy v. Johnson, 399.
PURCHASES MADE BY SUCH TRUSTEES AS EXECUTORS, ADMINISTRATORS,
OR SHERIFFS AT THEIR OWN SALES, and on their own account, are void.
able only, and not void. Id.
6. STATUTORY PROVISIONS AUTHORIZING EXECUTORS AND ADMINISTRATORS
TO MAKE SALES of property must be complied with in every essential
direction, otherwise the interest of heirs and creditors will not be pre-
cluded. And although this rule may be somewhat relaxed in favor of
innocent purchasers, it will operate with full force against executors and
administrators, purchasing at their own sales and against those subse-
quently deriving title from them through an execution sale. Id.
7. TO SET ASIDE PURCHASES MADE BY EXECUTORS AT THEIR OWN SALE,
heirs must resort to equity. So, also, when it is necessary to sue other.
wise than through the legal representative of the estate. Id.
8. WHERE EXECUTOR HOLDS IN HIS HANDS MONEY DERIVED FROM SALE of
lands of his testator, which is disaffirmed, the purchaser at such sale is
entitled to a decree against him for the amount so held. Hudgin v.
Hulgin, 124.
9. ADMINISTRATOR DE BONIS NON IS ENTITLED TO ADMINISTRATION OF ALL
GOODS of the deceased remaining unadministered. Swink v. Snodgrass,
190.
10. COLLUSION BETWEEN ADMINISTRATOR AND VENDER OF GOODS OF Dr.
CEASED renders the sale void. Id.
11. PURCHASER FROM ADMINISTRATOR Acting in VIOLATION OF HIS TRUST,
with knowledge of such violation, acquires no title. Id.
12. ACTION AT LAW MAY BE BROUGHT BY ADMINISTRATOR DE BONIS NON to
set aside a fraudulent sale by the administrator in chief, where it is not
necessary to join the distributees or creditors of the estate. Id.
Bee BONA FIDE Purchasers, 2; Estates of Decedents; Judgments, 1, 2
15; SPECIFIC Performance, 3; SUBROGATION; WITNESSES, 10.
See Co-TENANCY, 3; Statute of Limitations, 9, 10.
See INSANITY, 1, 4; WITNESSES, 11, 12
EX POST FACTO LAWS.
See CONSTITUTIONAL LAW, 6, 8.
Bee ATTORNEY AND CLIENT, 13; LICENSES.
FEMES COVERT.
See MARRIED WOMEN; WILLS, 28.
FEMES SOLE.
See MARRIED WOMEN. 3.
See JURY AND JURORS, 8-10,
1. ALL MOVABLE FIXTURES PERMANENTLY ATTACHED to a building become
immovable. Mackie v. Smith, 615.
2. MIRRORS WILL BE CONSIDERED AS FIXTURES when they have been placed
in recesses in the walls made to receive them, and which when removed
would leave the recesses in a rough and unfinished state. Id.
& MIRRORS WHEN PERMANENTLY ATTACHED to the walls will pass with a sale
of the building to the purchaser. Id.
FOREIGN ASSIGNMENTS.
See ASSIGNMENTS FOR BENEFIT OF CREDITORS, 5,
FOREIGN CORPORATIONS.
See STATUTE OF LIMITATIONS, 6-8.
See CONFLICT OF LAWS; EVIDENCE, 12
FOREIGN RECORDS.
See EVIDENCE, 10, 11.
FOREIGN WILLS.
See EVIDENCE, 10, 11.
FORMER CONVICTION.
See CRIMINAL LAW, 6.
FORTHCOMING BONDS.
See ATTORNEY and Client, 10, 11.
1. SUBSTANTIAL FRAUD, ENTERING INTO BASIS AND FRAMEWORK OF CONTRACT,
without which it would not have been made, avoids the contract in favor
of the party misled, whether the fraud originated with the principal, or
with his agent and was adopted by the principal. Fitzsimmons v. Joslin,
2 PARTY IS CHARGED AS PRINCIPAL IN FRAUD when he takes advantage of
unauthorized representations of third parties to obtain an unjust contract,
or adopts a contract made for his benefit through instrumentality of such
representations. Id.
See EVIDENCE, 31; EXECUTIONS, 22; EXECUTORS AND ADMINISTRATORS, 10–12;
FRAUDULENT CONVEYANCES; JUDGMENTS, 23; NEGOTIABLE INSTRUMENTS,
29, 32, 35; SALES, 5, 7-9; SURETYSHIP, 1, 3; Trust Deeds; WILLS, 13–
15; WITNESSES, 10.
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